Exhibit 10.8
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, effective as of December 23, 2003
(this "Agreement"), is made among Nortel Networks Limited a Canadian
corporation, Nortel Networks de Mexico, S.A. de C.V. a Mexican corporation,
Nortel Networks UK Limited an English corporation (collectivelly the
"Assignor"), Airspan Communications Limited, a subsidiary of Airspan Networks,
Inc., a Washington corporation along with their respective subsidiaries and
affiliates ("Assignee"), and AXTEL, S.A. de C.V., a Mexican corporation
("Axtel").
RECITALS:
A. On December 23, 2003, Assignee agreed to purchase certain assets and assume
certain obligations from Assignor related to Assignor's Fixed Wireless
Access ("FWA") business.
B. Assignor (Nortel Networks Limited and Nortel Networks de Mexico, S.A. de
C.V.) and Axtel have entered into a "Purchase and License Agreement for FWA
Equipment" dated as of March 20, 2003, as modified from time to time,
regarding the supply of fixed wireless access equipment and related
services from Assignor to Axtel (the "FWA PLA");
C. Assignor (Nortel Networks UK Limited) and Axtel have entered into a
"Technical Assistance Support Services Agreement for FWA Equipment" dated
as of March 20, 2003, as modified from time to time, regarding the
provision of technical assistance support services and other FWA services
from Assignor to Axtel (the "FWA TASS");
D. Assignor (Nortel Networks Limited) and Axtel have entered into a "FWA
Technology License Agreement" dated as of March 20, 2003, regarding the
provision of a contingency license to manufacture FWA products from
Assignor to Axtel (the "FWA License Agreement");
E. Assignor (Nortel Networks UK Limited) and Axtel have entered into a
"Special Agreement" dated as of September 30, 2003 (the "FWA Special
Agreement");
F. Assignor (Nortel Networks Limited and Nortel Networks de Mexico, S.A. de
C.V.) and Axtel have entered into an "Amendment Agreement No. 1 to the FWA
PLA" dated as of September 15, 2003 (the "First Amendment to the FWA PLA")
and a Change Order dated December 5, 2003 the "FWA Change Order");
X. Xxxxx has issued and delivered to Assignor some purchase orders for
products and services (the "Orders") pursuant and under the terms of FWA
PLA as modified and the FWA TASS as modified, some of which, as of this
date, are pending to be fulfilled by Assignor (collectivelly the "Axtel's
FWA Purchase Orders").
H. Assignor wishes to assign, and Assignee wishes to assume, all of the rights
and the obligations of Assignor under the following agreements and orders
with the exception of the Retained Duties and Rights as mentioned below
(collectivelly the "FWA Axtel Agreements & Orders"):
(i) the FWA PLA;
(ii) the FWA TASS;
(iii) the FWA License Agreement;
(iv) the FWA Special Agreement;
(v) the Axtel's FWA Purchase Orders;
(vi) the First Amendment to the FWA PLA; and
(vii) the FWA Change Order.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and agreements herein contained, the parties hereto agree as
follows:
Section 1. Assignment of FWA Axtel Agreements & Orders
Assignor, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, does hereby sell, assign, transfer, and convey to
Assignee all of Assignor's rights, title and interest in and to, and Assignor's
obligations, liabilities and duties under or with respect to the FWA Axtel
Agreements & Orders except for (i) the rights, obligations, liabilities and
duties under the purchase orders listed in Exhibit A of this Agreement, which
will remain the obligation or right of Assignor (the "Special Orders"), and (ii)
Assignor's rights, title and interest in and to certain monies Assignor has yet
to draw down under letters of credit listed on Exhibit B hereto (the "LCs")
previously issued by Axtel in connection with certain of Axtel's FWA Purchase
Orders that Assignor has already fully or partially fulfilled (the Special
Orders and LCs collectively, the "Retained Duties and Rights").
Section 2. Acceptance of Assignment and Assumption of Transferred Agreement
Assignee, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, hereby accepts such sale, assignment, transfer
and conveyance of all of Assignor's rights, title and interest in and to the FWA
Axtel Agreements & Orders (except for the Retained Duties and Rights), and
assumes Assignor's obligations, liabilities and duties under or with respect to
the FWA Axtel Agreements & Orders (except for the Retained Duties and Rights),
and agrees to pay, perform and/or discharge all of such obligations, liabilities
and duties as and when the same become due all in accordance with the terms and
conditions of the FWA Axtel Agreements & Orders.
Section 3. Acknowledgement of the Assignment and Assumption
1. Axtel hereby acknowledges, consents and agrees to (A) the sale,
assignment, transfer and conveyance by Assignor to Assignee of all of
Assignor's rights, titles and interests in and to the FWA Axtel
Agreements & Orders (except for the Retained Duties and Rights), and
(B) the assumption by Assignee of Assignor's obligations, liabilities
and duties under or with respect to the FWA Axtel Agreements & Orders
(except for the Retained Duties and Rights).
2. Axtel further acknowledges and agrees that Assignor has fulfilled all
of its obligations with respect to Article 20 of the FWA PLA.
3. Axtel hereby represents and warrants that each of the FWA Axtel
Agreements & Orders are in full force and effect, that no party is
currently in default thereunder, and that no
modifications have been made to the FWA Axtel Agreements & Orders
(except as set forth in such FWA Axtel Agreements & Orders).
4. Assignor hereby represents and warrants that each of the FWA Axtel
Agreements & Orders are in full force and effect, that no party is
currently in default thereunder, and that no modifications have been
made to the FWA Axtel Agreements & Orders (except as set forth in such
FWA Axtel Agreements & Orders).
Section 4. Letters of Credit
1. Axtel accepts that all future Letters of Credit to be issued by Axtel
in payment for purchase orders, including that certain Letter of
Credit due on January 15, 2004, shall be issued with the Assignee
named as the beneficiary.
2. Axtel and Assignor shall use their commercial best efforts to promptly
change the LCs (as defined above) to name Assignee as the beneficiary
thereunder after Assignor has completed drawing down the portion of
the monies due Assignor under the LCs as provided in Exhibit B of this
Agrement.
3. Axtel agrees to extend Letter of Credit 0000-0000-00, which expired
December 31, 2003, for a period sufficient to allow Assignor or
Assignee (as applicable) to draw down monies due thereunder, which
shall be no sooner than March, 2004.
Section 5. Representations and Warranties.
5.1. Representations by Each Party. Each Party represents and warrants (as to
itself only) for the benefit of the other Parties as follows:
(i) It has full legal right, power and authority, without the consent of any
other person, to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. All corporate and other acts or
proceedings required to be taken by it to authorize the execution, delivery
and performance of this Agreement and all transactions contemplated hereby
have been duly and properly taken.
(ii) This Agreement when executed shall constitute the lawful, valid and legally
binding obligations of such Parties, enforceable in accordance with each
Party's respective terms.
(iii) Each Party is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization.
Section 6. Notices
All notices, consents, waivers, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given: (a) immediately when personally
delivered; or (b) when receipt is confirmed, either electronically or otherwise,
if sent by facsimile or other electronic transmission device. Notices, demands
and communications to Assignor, Assignee and Axtel will be sent to the address
indicated
below or to such other address as any Assignee may designate from time to time
in writing to the other Parties in accordance with this provision.
If to Assignor, to:
Nortel Networks (CALA) Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000,
Attention: Senior Counsel
Copy to:
Nortel Networks de Mexico, S.A. de C.V.
Xxxxxxxxxxx Xxx 0000, Xxxx 00
Xxx. San Xxxx Xxxxxxxxxxx
00000 Xxxxxx, X.X.
Attn.: President
If to Assignee, to:
Airspan Communications Limited
Cambridge House
Oxford Road
Uxbridge
Xxxxxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Attention: Vice President and Controller
Tel: (00) 0000-000000
Fax: (00) 0000-000000
Copy to:
Airspan Networks, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
XXX
Attention: Senior Vice President & CFO
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any Assignee may designate from
time to time in writing to the other Parties in accordance
with this provision.
If to Axtel, to:
Axtel, S. A. de C. V.
Boulevard Xxxxxxx Xxxx Xxxxx Xx. 3.33 L-1
Colonia Unidad San Xxxxx
San Xxxxx Xxxxx Xxxxxx, X. X.
Mexico, C. P. 66215
Tel: (00) 0000-0000
Fax: (81) 8114-1919 ext. 1175
Attention: Xxxxxxx xx Xxxxxxxxxx Xxxxxxx
Copy to: Legal Department or to such other address as Axtel may designate from
time to time in writing to the other Parties in accordance with this provision.
Section 7. Waiver
No waiver of any provision nor consent to any exception to the terms of this
Agreement will be effective unless in writing and signed by the Party to be
bound thereby, and then only to the specific purpose, extent and instance so
provided. The failure of any Party hereto to enforce any of the provisions of
this Agreement, or the waiver thereof in any instance, shall not be construed as
a general waiver or relinquishment on its part of any such provision, but the
same shall nevertheless be and remain in full force and effect.
Section 8. Entire Agreement; Amendments
This Agreement constitutes the entire and final agreement and understanding
among the Parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings among the Parties relating to the subject
matter hereof, which are of no further force or effect. This Agreement may only
be amended, modified or supplemented by an instrument in writing executed by
authorized representatives of Assignor, Assignee and Axtel.
Section 9. Expenses
Except as otherwise provided in this Agreement, each party to this Agreement
will bear its respective fees and expenses incurred in connection with the
preparation, negotiation, execution and performance of this Agreement. If this
Agreement is terminated, the obligation of each party to pay its own fees and
expenses will be subject to any rights of such party arising from a breach of
this Agreement by another party.
Section 10. Successors and Assigns; No Third Party Beneficiaries
This Agreement is binding upon and will inure to the benefit of each Party and
their respective affiliates, subsidiaries, permitted successors and assigns, and
nothing in this Agreement, express or implied, is intended to confer upon any
other person, including, but not limited to, Assignor's, Assignee's or Axtel's
end users or customers or any governmental entity, any rights or remedies of any
nature whatsoever.
Section 11. Counterparts; Facsimile Signatures
This Agreement and any amendment hereto may be executed in multiple counterparts
in English. All counterparts shall constitute one and the same instrument and
shall become effective when one or more counterparts have been signed by each
Party and delivered to the other Parties. Facsimile signatures shall be treated
as original signatures for the purpose of enforcing this Agreement. The Parties
agree to exchange original signature pages as soon as practicable following
exchange of the facsimile signature pages (to the extent facsimile signatures
are exchanged), but the original signatures are not required in order to enforce
this Agreement.
Section 12. Severability
If any term, covenant or condition contained herein is, to any extent, held
invalid or unenforceable in any respect under the laws governing this Agreement,
it will be adjusted rather than voided, if possible, to achieve the intent of
the Parties. All other provisions of this Agreement will be deemed valid and
enforceable to the fullest extent permitted by law.
Section 13. Representation by Counsel; Interpretation
Assignor, Assignee and Axtel each acknowledge that it has been represented by
counsel in connection with this Agreement. Accordingly, any rule of law or any
legal decision that would require interpretation of any claimed ambiguities in
this Agreement against the Party that drafted it has no application and is
expressly waived. The provisions of this Agreement will be interpreted in a
reasonable manner to effect the intent of Assignor, Assignee and Axtel.
Section 14. Governing Law
The laws of the State of New York, United States of America govern this
Agreement, exclusive of its conflict of laws provisions; and nothing in this
Agreement affects any statutory rights of consumers that cannot be waived or
limited by contract. The United Nations Convention on the International Sale of
Goods shall not apply.
IN WITNESS WHEREOF, each of the parties hereto has caused this ASSIGNMENT,
ASSUMPTION AND NOVATION AGREEMENT to be executed by its duly authorized officer.
Nortel Networks Limited, Airspan Communications Limited
as Assignor
as Assignee
By: /S/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-Fact By: /S/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Nortel Networks UK Limited, Title: Company Secretary
as Assignor
Airspan Networks, Inc.
as Assignee
By: /S/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: General Counsel/Director
By: /S/ Xxxxx Xxxxxxxx
-----------------------------
Nortel Networks de Mexico, S.A. de C.V. Name: Xxxxx Xxxxxxxx
as Assignor Title: Senior Vice President
By: /S/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title:
By:
Name:
Title
AXTEL, S.A. de C.V.,
as Axtel
By: /S/ Xxxxxxx xx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx xx Xxxxxxxxxx
Title: Legal Representative
Exhibit A
Special Orders
PO # 0000000000 - NN Invoice # 0155129913 - R&R for 205 F5 RTUs - $26,650.00
This PO has been invoiced against Axtel by Nortel Networks (UK) Limited and
should be paid by Axtel. Subject product has been partially returned; Nortel
Networks is responsible for the remaining repair services for this order as
described in the TASS Agreement.
PO # 4500052000 - Airspan Invoice # P1443 - R&R for Various Base Station Items -
$97,199.00
This PO has been invoiced against Axtel by Airspan and should be paid to Airspan
by Axtel. The obligation for R&R services is Nortel's for this order.
Exhibit B
Letters of Credit
